B-164538, APR. 7, 1969

B-164538, APR. 7, 1969

TO MR. GREGORY A. BENADOM:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 29, 1969, CONCERNING DECISION OF OCTOBER 8, 1968, B-164538, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR DISLOCATION ALLOWANCE INCIDENT TO THE TRAVEL OF YOUR DEPENDENT WIFE FROM YOKOSUKA, JAPAN, TO GLENDALE, CALIFORNIA, DURING THE PERIOD AUGUST 16 TO 18, 1966.

IN THE DECISION OF OCTOBER 8, 1968, YOU WERE ADVISED THAT PARAGRAPH M9004 -2 (FORMERLY M9003-4) OF THE JOINT TRAVEL REGULATIONS, PROMULGATED PURSUANT TO 37 U.S.C. 407, PROVIDES THAT THE DISLOCATION ALLOWANCE WILL NOT BE PAYABLE IN CONNECTION WITH PERMANENT CHANGE OF STATION TRAVEL FROM LAST DUTY STATION TO HOME OR TO THE PLACE FROM WHICH ORDERED TO ACTIVE DUTY UPON SEPARATION FROM THE SERVICE, RELEASE FROM ACTIVE DUTY, PLACEMENT ON THE TEMPORARY DISABILITY RETIRED LIST, OR RETIREMENT.

YOU WERE ALSO ADVISED THAT PRIOR TO THE EFFECTIVE DATE OF THE CHANGE OF HOMEPORT OF THE U.S.S. HENRY W. TUCKER (DD875) ON JULY 1, 1966, YOU RECEIVED ORDERS DATED JUNE 11, 1966, DETACHING YOU FROM DUTY ON THAT VESSEL AND DIRECTING YOUR SEPARATION FROM THE SERVICE AND CONSEQUENTLY, THERE WAS NO AUTHORITY FOR THE TRANSPORTATION OF YOUR DEPENDENT, THE SHIPMENT OF HOUSEHOLD GOODS, OR THE PAYMENT OF A DISLOCATION ALLOWANCE INCIDENT TO THE HOMEPORT CHANGE. IN SUCH CIRCUMSTANCES IT NECESSARILY WAS HELD THAT IF HER TRANSPORTATION WAS AUTHORIZED, IT WAS AUTHORIZED INCIDENT TO YOUR SEPARATION ORDERS ONLY. YOU WERE DISCHARGED AUGUST 15, 1966, PRIOR TO AUGUST 16, 1966, THE DATE ON WHICH YOUR WIFE COMMENCED HER TRAVEL TO GLENDALE.

IN YOUR LETTER OF JANUARY 29, 1969, YOU SAY THAT THE ORDERS ISSUED TO YOU ON JUNE 11, 1966, WERE NOT VALID AND THAT A THIRD SET OF ORDERS DATED AUGUST 12, 1966, DUPLICATING THE FIRST SET OF ORDERS DATED APRIL 11, 1966, RECONFIRMED YOUR STATUS OF CHANGING HOMEPORTS RATHER THAN BEING SEPARATED FROM DUTY. YOU ALSO SAY THAT THE ORDERS DATED JUNE 11, 1966, DIRECTING YOUR SEPARATION FROM THE SERVICE WERE ISSUED IN ERROR AND THAT THERE WAS NO ATTEMPT TO SEPARATE YOU PRIOR TO THE TIME YOUR SHIP ARRIVED AT ITS NEW PORT. YOU CLAIM THAT THE TRAVEL OF YOUR WIFE WAS INCIDENT TO THE CHANGE OF YOUR HOMEPORT AND NOT INCIDENT TO YOUR SEPARATION FROM THE SERVICE.

THE ORDERS DATED AUGUST 12, 1966, AS YOU SAY, CONFIRMED THE CERTIFICATE DATED APRIL 11, 1966, ISSUED IN LIEU OF PERMANENT CHANGE OF STATION ORDERS, TO THE EFFECT THAT THE HOMEPORT OF THE TUCKER WAS CHANGED FROM YOKOSUKA, JAPAN, TO LONG BEACH, CALIFORNIA. THESE ORDERS PROVIDED EXPRESSLY, HOWEVER, THAT YOU WOULD BE ENTITLED TO TRANSPORTATION OF DEPENDENTS INCIDENT TO THE HOMEPORT CHANGE ONLY IF "YOU ARE SERVING IN TUCKER AT THE TIME OF EFFECTIVE DATE OF HOMEPORT," JULY 1, 1966.

THERE IS NOTHING IN THE RECORD TO SHOW THAT YOUR ORDERS OF JUNE 11,1966, DIRECTING YOU TO PROCEED TO THE TRANSIENT BARRACKS, U.S. FLEET ACTIVITIES, YOKOSUKA, JAPAN, FOR SEPARATION FROM THE SERVICE WERE ISSUED IN ERROR AND OBVIOUSLY THE ORDERS WERE PREDICATED UPON YOUR DECISION NOT TO REENLIST IN THE NAVY. IN THIS REGARD IT MAY BE NOTED THAT YOU WERE INTERVIEWED ON JULY 15, 1966, ON BOARD THE TUCKER WITH REGARD TO REENLISTING IN THE NAVY AND YOU AFFIRMED YOUR DECISION NOT TO REENLIST. WHILE THESE ORDERS DIRECTED YOU TO REPORT AT THE TRANSIENT BARRACKS AND THE ORDERS DATED AUGUST 12, 1966, APPARENTLY WITH REFERENCE TO YOUR STATUS ON APRIL 11, 1966, WHEN THE CERTIFICATE WAS ISSUED, STATE THAT YOU WERE THEN SERVING ON THE TUCKER, THE ORDERS OF JUNE 11, 1966, WERE ISSUED FOR THE PURPOSE OF YOUR SEPARATION WHICH WAS ACCOMPLISHED ON AUGUST 15, 1966.

IN SUCH CIRCUMSTANCES AND SINCE YOUR WIFE TRAVELED FROM YOKOSUKA TO GLENDALE SUBSEQUENT TO YOUR SEPARATION FROM THE SERVICE, WE SEE NO LEGAL BASIS FOR CONCLUDING THAT HER TRAVEL TO GLENDALE WAS PERFORMED INCIDENT TO THE HOMEPORT CHANGE OF THE TUCKER. THUS, HER TRAVEL TO GLENDALE MUST BE CONSIDERED AS HAVING BEEN PERFORMED INCIDENT TO YOUR SEPARATION FROM THE SERVICE.